Buried Clauses in Terms of Service and EULAs: What You Need to Know

In the digital age, we regularly encounter Terms of Service (ToS) and End User License Agreements (EULAs) when signing up for online services, downloading software, or purchasing digital products. These documents, often filled with dense legal language, outline the terms and conditions under which users agree to use a product or service. However, many consumers overlook the importance of these agreements, clicking "agree" without fully understanding the implications.

This oversight can lead to serious consequences. Companies often include clauses that limit users' rights, dictate dispute resolution procedures, or grant the company broad rights over user data and content. These clauses are frequently buried deep within the document, making them easy to miss. This article explores the potential pitfalls of buried clauses in ToS and EULAs and provides real-world examples of companies that have included controversial terms in their agreements.

The Importance of Reading the Fine Print

Before delving into specific examples, it’s important to understand why these buried clauses matter. When users agree to a ToS or EULA, they are entering into a legally binding contract with the company. This contract can dictate how disputes are resolved, how personal data is used, and even who owns the content you create using the service.

Some of the most common issues found in these agreements include:

• Mandatory Arbitration: Many companies include arbitration clauses that require users to resolve disputes outside of court, often limiting their ability to participate in class-action lawsuits.
• Data Usage: Companies may include clauses that allow them to collect, use, and share personal data with third parties, sometimes in ways that users wouldn’t expect.
• Content Ownership: Some agreements grant the company broad rights to use, modify, or even sell content that users create using their services.
• Limited Liability: Companies often include clauses that limit their liability in case their products or services cause harm.

Understanding these clauses and their implications is crucial for protecting your rights as a consumer. Let’s take a closer look at some notable examples where companies have included controversial or unexpected clauses in their ToS or EULAs.

1. Facebook/Meta's Data Sharing and Ownership

Facebook’s ToS has long been a topic of debate, especially regarding its data-sharing practices. The platform collects extensive user data, which it shares with advertisers and third-party partners. Users technically agree to this when they sign up, but the specifics are buried in lengthy documents.

At one point, Facebook also included clauses related to facial recognition, where it would scan and identify faces in photos. This led to significant privacy concerns and legal actions, particularly in Illinois, where it was found to violate the state's biometric privacy law.

2. LinkedIn’s Broad License

LinkedIn’s ToS includes a clause granting the platform a "worldwide, transferable, and sub-licensable" license to any content users post. This means LinkedIn can use, modify, distribute, and even allow others to use your content without additional consent or compensation. Many users are unaware of this clause, which gives LinkedIn significant control over the professional content shared on its platform.

3. Spotify's Mandatory Arbitration Clause

Spotify’s ToS includes a mandatory arbitration clause, requiring users to resolve disputes through arbitration rather than in court. This clause also typically includes a class action waiver, preventing users from joining together in a lawsuit. Many users are unaware of these clauses, which significantly limit their legal recourse in disputes with the company.

4. Uber's Data Collection and Arbitration

Uber’s ToS includes broad clauses regarding data collection, including users’ location data. Even when the app is not in use, Uber’s terms have allowed it to track users’ locations in the past. Like many tech companies, Uber also includes a mandatory arbitration clause, preventing users from suing the company in court or participating in class actions.

5. Amazon's Right to Modify Content

Amazon’s Kindle EULA contains a clause allowing Amazon to remotely remove content from users' devices. This became a significant issue when Amazon famously deleted copies of George Orwell's "1984" from users’ Kindles without notice in 2009. Additionally, Amazon’s agreements also include arbitration and class action waiver clauses, limiting users’ ability to seek redress through the courts.

6. TikTok’s Data Privacy Issues

TikTok’s ToS has been criticized for allowing the app to collect vast amounts of data on users, including their location, device information, and even what they type (keyboard usage). The terms give TikTok broad rights to share this data with third parties, including potentially with the Chinese government, raising significant privacy concerns.

7. Apple’s "Do Not Sue Us" Clause

Apple’s EULA for iTunes and other products has included clauses that limit the company’s liability for any damages that arise from using their products. Essentially, if something goes wrong with your Apple product that causes you harm or loss, Apple’s terms limit how much you can claim in damages, often to the price of the product itself. Apple’s agreements also include arbitration clauses, preventing users from filing lawsuits or participating in class actions.

8. Nintendo’s User Content Ownership

Nintendo's EULA has included clauses where the company claims rights over any user-generated content related to its games. This means that any content you create (videos, fan art, etc.) that involves Nintendo’s IP could theoretically be used by Nintendo without compensation.

9. Sony PlayStation's No Modifications Clause

Sony’s PlayStation Network ToS prohibits users from modifying their consoles or engaging in any activity that would allow them to run unlicensed software. If users violate these terms, Sony reserves the right to permanently ban them from the PlayStation Network.

10. Zoom’s Data Usage and Privacy Issues

During the pandemic, Zoom faced scrutiny for its privacy policies, which included broad data collection and sharing practices. There were concerns that Zoom’s ToS allowed the company to share user data with third parties, including Facebook, without explicit consent from users.

11. Instagram’s Rights Over User Photos

Instagram’s ToS includes a clause that grants the platform a "non-exclusive, fully paid, and royalty-free, transferable, sub-licensable, worldwide license to use the content you post." This has raised concerns among photographers and artists who may not realize they’re giving Instagram such broad rights over their work.

12. WhatsApp’s Data Sharing with Facebook

In 2021, WhatsApp updated its privacy policy to allow data sharing with its parent company, Facebook. This led to significant backlash, especially since the app had previously assured users of strong privacy protections. Many users were unaware that by continuing to use the service, they were agreeing to this data sharing.

What Can Consumers Do?

Given these examples, it’s clear that buried clauses in ToS and EULAs can have significant implications for consumers. Here are some steps you can take to protect yourself:

1. Read the Agreements: While it can be tedious, taking the time to read and understand the ToS or EULA can help you avoid agreeing to terms that may not be in your best interest.
2. Look for Red Flags: Pay special attention to clauses related to data usage, arbitration, content ownership, and liability limitations. If something seems unfair or overreaching, consider whether you really want to agree to those terms.
3. Seek Legal Advice: If you’re unsure about the implications of a particular clause, consulting with a lawyer can provide clarity and help you understand your rights.
4. Opt-Out Options: Some services allow you to opt out of arbitration clauses within a certain period after agreeing to the terms. Be sure to check if this option is available and act quickly if you want to retain your right to take disputes to court.
5. Stay Informed: Companies often update their ToS and EULAs, sometimes without much notice. Staying informed about these changes can help you avoid surprises down the road.

"Terms and Conditions May Apply"

That explores the implications of Terms of Service agreements. Released in 2013, this documentary delves into how companies like Facebook, Google, and others use the fine print in their terms and conditions to collect data from users, often in ways that consumers may not fully understand or expect.

Key Points of the Documentary:

• Privacy Concerns: The film highlights how companies collect and utilize personal data through seemingly innocuous terms in their service agreements.
• Legal Implications: It discusses the legal rights users often unknowingly give up by agreeing to these terms, including the ability to sue or control how their data is used.
• Surveillance: The documentary touches on how data collected by these companies can be used for surveillance purposes, including by government agencies.
• Consumer Awareness: It emphasizes the need for greater consumer awareness and understanding of the terms they agree to when using online services.

This documentary is available on various streaming platforms, though its availability may vary. It is a powerful watch for anyone interested in understanding the hidden consequences of clicking "I agree" without fully reading or comprehending the ToS or EULA.

If you’re looking for something similar on Amazon Prime, while there may not be a direct equivalent to "Terms and Conditions May Apply," there are other documentaries and films that explore related themes of privacy, surveillance, and the digital age, such as:

• "The Great Hack" (Netflix): Focuses on the Cambridge Analytica scandal and how data was harvested and used in political campaigns.
• "Citizenfour" (Amazon Prime): Chronicles Edward Snowden's revelations about NSA surveillance programs.
• "The Social Dilemma" (Netflix): Examines how social media platforms manipulate users through their data and the psychological impact of these practices.

These films collectively provide a comprehensive view of the often-overlooked consequences of our interactions with digital platforms and the agreements we make when we use them.

Conclusion

Terms of Service and End User License Agreements are legally binding documents that can have far-reaching consequences for consumers. While it may be tempting to skip reading these agreements, doing so can lead to unknowingly surrendering important rights. By staying informed and vigilant, consumers can better protect themselves from the pitfalls of buried clauses in these agreements.